Jurisprudence Commons^™

The Contribution Of The Special Court For Sierra Leone To The Development Of International Law, Charles Chernor Jalloh

Faculty Publications

This article is the first major study examining whether the Special Court for Sierra Leone (SCSL) has made, or is making, any contribution to the development of international law. The author concludes that it has. In this vein, he analyzes the creation of the Defence Office, the Legacy Phase Working Group and the Outreach Section to show that some of the structural novelties introduced through SCSL practice have proven to be worthy of replication within other international criminal courts. Taking as an example the controversy regarding the United Nations Security Council’s power to create ad hoc international criminal tribunals, the …

Whose Public, Whose Order? Imperium, Region, And Normative Friction, Christopher J. Borgen

Faculty Publications

Theories of international law and politics are a product of their times. They focus on the issues of the day (or of the immediate past) and their assumptions are often the assumptions of the society in which they were born. Perhaps that it is why so many international relations scholars were surprised by the end of the Cold War: Their theories were so informed by bipolarity that they were unable to see the actual changes that would transform the state system. As international relations scholars are re-assessing their theories in a post-Cold War world, lawyers may do the same concerning …

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

Faculty Publications

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …

Rules, Standards, And The Internal Point Of View, Dale A. Nance

Faculty Publications

The general thrust of the present discussion is that, in addition to its contribution to economizing on enforcement costs, there is a connection between the internal point of view and the aspiration to republican self-government: the greater the incidence of the former, the greater the achievement of the latter, ceteris paribus. This fact imbues the notion of a healthy legal system with a crucially normative component that goes beyond, and need not be inconsistent with, efficient social organization.

Formalism In American Contract Law: Classical And Contemporary, Mark L. Movsesian

Faculty Publications

It is a universally acknowledged truth that we live in a formalist era—at least when it comes to American contract law. Much more than the jurisprudence of a generation ago, today's cutting-edge work in American contract scholarship values the formalist virtues of bright-line rules, objective interpretation, and party autonomy. Policing bargains for substantive fairness seems more and more an outdated notion. Courts, it is thought, should refrain from interfering with market exchanges. Private arbitration has displaced courts in the context of many traditional contract disputes. Even adhesion contracts find their defenders, much to the chagrin of communitarian scholars.

This is …

Justice Blackmun And The Spirit Of Liberty, Richard C. Reuben

Faculty Publications

As we see in this symposium, Justice Harry Blackmun is as controversial in death as he was in life. We live in a time of increasing absolutism, where things are either black or white, red or blue, you are either for me or against me, my way or the highway. It is when we are swayed by the sirens of absolutism that we are most likely to make mistakes, for absolutism diminishes our capacity to see nuance, much less to appreciate and account for it in our reasoning. This is a dangerous thing in a court, and in a democracy. …

Race, Trust, Altruism, And Reciprocity, George W. Dent

Faculty Publications

Trust, altruism and reciprocity are attracting growing attention from scholars. Interest began with psychological experiments showing that people often are altruistic, trust others, and reciprocate the benevolence of others far more than economic models of "rational" human selfishness predict. These findings inspired social scientists to discover what factors promote or hinder cooperation. Legal scholars have employed this learning to determine how the law does or could facilitate or discourage cooperation in many contexts, including business transactions and the workplace. The influence of race on cooperation has been studied in specific areas, but so far no one has considered how the …

An Alternative Paradigm For Valuing Breach Of Registration Rights And Loss Of Liquidity, Royce De R. Barondes

Faculty Publications

This Article looks to another paradigm to motivate an answer--the exotic financial instruments created on Wall Street. Over the last few decades, a market has developed in assorted sophisticated financial instruments created by unbundling and repackaging various components of traditional securities. Financial engineering, for example, allows the creation of “synthetics.” One court has described “synthetic” securities as follows: “A synthetic transaction is typically a contractual agreement between two counterparties, usually an investor and a bank, that seeks to economically replicate the ownership and physical trading of shares and options.” This Article similarly formulates synthetic rights that, when coupled with the …

Rediscovering Williston, Mark L. Movsesian

Faculty Publications

This Article is an intellectual history of classical contracts scholar Samuel Williston. Professor Movsesian argues that the conventional account of Williston's jurisprudence presents an incomplete and distorted picture. While much of Williston's work can strike a contemporary reader as arid and conceptual, there are strong elements of pragmatism as well. Williston insists that doctrine be justified in terms of real-world consequences, maintains that rules can have only presumptive force, and offers institutional explanations for judicial restraint. As a result, his scholarship shares more in common with today's new formalism than commonly supposed. Even the under-theorized quality of Williston's scholarship—to contemporary …

The Internationalism Of Justice Harry Blackmun, Margaret E. Mcguinness

Faculty Publications

(Excerpt)

Throughout the symposium we have heard a host of adjectives to describe Justice Harry Blackmun and his jurisprudence, among them "willful," "liberal," "conservative," and "humble." Added to this list is what Professor Ruger calls "the ultimate compound taxonomy" for Justice Blackmun, a "'White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs.'" One adjective that is conspicuously missing is "internationalist," a term that describes an important, though less discussed, dimension of Justice Blackmun and his jurisprudence. Internationalism is, in part, reflected in Justice Blackmun's "preference change" or shift from "relatively conservative to relatively liberal." At the same time, internationalism …

Traditional Marriage: Still Worth Defending, George W. Dent

Faculty Publications

A few years ago, I wrote an article entitled The Defense of Traditional Marriage.1 I began with the topic of same-sex marriage but soon saw that all the arguments for gay marriage were also arguments for polygamy, endogamy (or incestuous marriage), etc., so the article became a defense of traditional marriage against all these other types. The pertinent law and jurisprudence are constantly changing, so this conference offers an excellent opportunity to reconsider my views in light of new learning and thinking. A review shows the case for traditional marriage is even stronger now than it was before. As evidence …

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …

Latcrit Vi, Outsider Jurisprudence And Looking Beyond Imagined Borders, Ediberto Román

Faculty Publications

The Sixth Annual LatCrit Conference (LatCrit VI) titled "Latinas/os and the Americas: Centering North-South Frameworks in LatCrit Theory," was the latest installment of the leading progressive scholarly movement addressing nonwhite critical jurisprudence.3 The goals of the conference were to explore the ties that bind Latinas/os residing in the United States to their homeland's societies and cultures, and to examine the impact of globalization on critical jurisprudential discourse.4 The conference was attended predominately by straight and gay law professors of color, including Latinas/os, African Americans, Asian Americans, and indigenous persons, most of whom describe themselves as LatCrits or more whimsically, LatCritters. …

The Unruliness Of Rules, Peter A. Alces

Faculty Publications

No abstract provided.

Is The Republic Circling The Drain?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.

Naturalized Epistemology And The Critique Of Evidence Theory, Dale A. Nance

Faculty Publications

In this article I give a mixed review Allen and Leiter’s naturalized epistemology theory of evidence. I applaud their focus on naturalized epistemology, but I question the claims that they argue follow from it. In some ways, my reaction is that they have not gone far enough in pressing its implications, and I attempt to suggest how further progress might be made along this path. On the whole, I conclude that the antipathy toward algrithms expressed by Allen and Leiter is misplaced.

Introduction: The Difficult First Amendment, Christina E. Wells

Faculty Publications

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.

On The Evolution Of The Canonical Dissent, Anita S. Krishnakumar

Faculty Publications

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions—e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson—that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the …

Regret And Contract "Science", Peter A. Alces

Faculty Publications

No abstract provided.

The Defense Of Traditional Marriage, George W. Dent

Faculty Publications

This article reviews the possible justifications for legal recognition of marriage and finds some, such as encouraging stable, loving relationships, unpersuasive. However, other rationales-including protecting children, socializing adults, and promoting individual happiness-are valid, and these rationales apply only to traditional marriages. Accordingly, society has strong reasons to favor traditional marriage and to deny such treatment to the unmarried and to homosexual, endogamous and bestial relationships.

Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells

Faculty Publications

Part I of this article briefly reviews the legal and social context of Dennis and Yates. Parts II and III similarly review Madsen and Schenck in order to show potential parallels to the earlier communist decisions. Part IV further examines both Madsen and Schenck, demonstrating that, from a doctrinal standpoint, they are far removed from the earlier communist cases. Finally, Part V explains how the Court in Madsen and Schenck actually contributed to misconceptions or manipulation of its opinions. Specifically, Part V examines the Madsen and Schenck Courts' approaches to three of the more difficult doctrinal issues facing them--prior restraint, …

Crime Or Punishment: The Parental Corporal Punishment Defense - Reasonable And Necessary, Or Excused Abuse, Kandice Johnson

Faculty Publications

The parental right to use physical force to discipline and restrain children is a privilege firmly rooted in the American system of jurisprudence. This privilege is often asserted as a defense when parents are charged with a crime of aggression against their child. While the privilege to use disciplinary force is universally recognized as a defense in criminal actions, it is equally acknowledged that child abuse is a pervasive reality of American life. This article postulates that current laws, addressing assertion of the parental privilege defense in criminal actions, fail either to provide adequate guidance to parents or to sufficiently …

Tyrannous Lex, Thomas E. Baker

Faculty Publications

Professor Baker presents a fundamentally unique question. Including all of the legal opinions, statutes and administrative rules, how much law do we have? Is there way to calculate a “Gross Legal Product” for the United States and what effect does this “GLP” have on the U.S. economy? What about all of the secondary legal sources? What do they add, if anything, to our ability to understand all of the law that is constantly being produced? All these and more are the subject of Professor Baker’s article.

Reinvigorating Autonomy: Freedom And Responsibility In The Supreme Court's First Amendment Jurisprudence, Christina E. Wells

Faculty Publications

Part I of this Article explores the conception of autonomy that scholars have generally attributed to the Court and discusses problems with that conception. Part II sets forth an alternative, Kantian conception of autonomy and discusses its implications for a system of laws regulating free expression. Part III analyzes the Court's free speech jurisprudence and its autonomy rationale. It specifically examines both the Court's distinction between content-based and content-neutral regulations of speech and its approach to low-value speech, demonstrating that they reflect a Kantian notion of autonomy. Finally, Part IV discusses the implications of Kantian autonomy for hate speech regulation, …

Statutory Interpretation In Securities Jurisprudence: A Failure Of Textualism, Ediberto Román

Faculty Publications

This Article critiques the development of textualist theory in securities jurisprudence and analyzes the Central Bank decision as an example of the defects inherent in the application of a textualist approach. It demonstrates how the development of textualist securities jurisprudence stemmed from decisions that casually rejected precedent and mischaracterized existing law, thereby resulting in a distortion of the legislature’s intent. An analysis of the Securities Exchange Act demonstrates how the Central Bank Court’s approach towards statutory interpretation led to its failure to analyze other relevant Exchange Act provisions, including the most relevant provision – Section 20(a). The first section of …

Judicial Knowledge, William B. Fisch

Faculty Publications

This paper reviews rules governing the use by judges in United States courts of their personal knowledge - as distinguished from that supplied by the parties in the adjudication of a civil case, whether of the particular facts out of which the dispute arises, or of general information with which the particular facts must be processed, or of law which is to be applied to the particular facts.

When Judges Are Gatekeepers: Democracy, Morality, Status, And Empathy In Duty Decisions (Help From Ordinary Citizens), Cheryl L. Wade

Faculty Publications

(Excerpt)

Imagine that you are eighteen and you have just graduated from high school. Even though you have no cognitive disability and have spent twelve years of your life attending public schools, you are functionally illiterate. If your predicament was caused by negligent educators, your action for educational malpractice would be called a "failure to educate" case and it would be denied.

Or, imagine that you enter a public school kindergarten class and you are examined by the school's psychologist. On the basis of a verbal intelligence test, the psychologist concludes that you are mentally retarded. In reality, you have …

Abortion Counseling As Vice Activity: The Free Speech Implications Of Rust V. Sullivan And Planned Parenthood V. Casey, Christina E. Wells

Faculty Publications

Part I of this article discusses the Court's opinions in Rust and Casey. It first demonstrates that the driving force in both decisions was the Court's characterization of abortion counseling as an activity rather than as speech. Part I further discusses the speech/conduct distinction in First Amendment jurisprudence and demonstrates that abortion counseling falls on the speech side of that distinction. Parts II and III suggest that the real cause of the conflation of speech and conduct in Rust and Casey was the confluence of (1) the reemergence of reasoning found in a curious commercial speech decision -- Posadas de …

The Radical Feminist Defense Of Individualism, Cynthia V. Ward

Faculty Publications

No abstract provided.

A Kinder, Gentler Liberalism? Visions Of Empathy In Feminist And Communitarian Literature, Cynthia V. Ward

Faculty Publications

No abstract provided.